Jim Porter: Owner of rental home liable for drowning death?

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If you own and rent out a home, or if you are a rental management company, you should read Johnson v. Prasad.

RENTAL OF HOUSE

The Prasads bought a house with an in-ground backyard swimming pool in 2000. The pool was built in 1976 and complied with state and local laws at that time.

Around the perimeter of the property was a six-foot wooden fence that prevented access to the backyard.

The only direct access from the house to the pool was through the kitchen, through a sliding glass door with a security gate; however, the security gate did not have a self-closing mechanism.

Century 21 managed the rental of the home for the Prasads.

SWIMMING POOL DROWNING

On June 28, 2009, the renter of the Prasads’ home had a party at the house. Several friends attended.

They swam in the pool. Everyone left the pool, went back into the house, but one 4-year old boy wandered back out through the kitchen door and somehow drowned in the pool.

A parent’s worst nightmare.

HOMEOWNER SUED

The young boy’s family sued the Prasads and Century 21 claiming they were negligent in failing to ensure that the home met safety codes prior to renting to the public.

My common sense antenna goes up when I see a homeowner is sued for “failure to ensure that the premises met safety codes prior to renting.”

Think about that. How many code violations could there typically be in a home — especially an older home — that could lead to liability for the homeowner/landlord and rental agent.

HOMEOWNER’S DEFENSE

Century 21 and the Prasads convinced the trial court they had no duty to inspect the premises before renting and the pool was not a “nuisance” or an unreasonably dangerous condition, nor did they create any type of dangerous condition or in any way contribute to the accident.

Further, the security gate and sliding glass door did not cause the accident because it was intentionally left open.

Plaintiff Melina Johnson, mother of the 4-year old, appealed. The appellate panel, which includes former Nevada County Superior Court Judge Kathleen Butz, is as good as it gets.

But I disagree with their decision; I think it opens a floodgate of potential lawsuits.

COURT RULING

The Sacramento Court of Appeal summarized the legal issue as — whether the homeowner/landlord breached a duty of care to the 4-year-old by failing to install a self-closing or self-latching mechanism on the kitchen door leading to the pool, or whether they should have installed a fence around the perimeter of the pool with no access from the kitchen.

The three justices seemed to ignore that the self-closing requirement was not the law when the pool and home were constructed. And they declined to determine the unfortunate death occurred solely due to the responsible adult’s failure to supervise her child.

The Court found the failure to supervise was a separate liability not affecting the negligence of the homeowner.

The Court of Appeal ruled “because a jury could conclude a reasonably prudent homeowner should have taken further precautions because it was foreseeable that a child could still access the pool and could drown or be injured,” the case should have gone to the jury rather than have been decided by the trial court.

Even though the decision merely allows the case to go to a jury, I still disagree.

CENTURY 21

Century 21 was let off the hook because the requirement for a door-locking device did not exist at the time the pool was built.

However, the opinion seems to open the door to rental agents having a legal responsibility for homes they rent that do not meet all code requirements — when a code violation somehow contributes to injuries or death.

I would not be surprised if this case makes it to the California Supreme Court.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.